DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

BIRBHUM (SURI).

C. F. CASE NO.-BIR/43/O/2006.



PETITIONER =Vs. = O.Ps

Bandana Sil, 1. Dr. Debashis Debangshi, S/o.Dwarikanath

W/o. Shyamal Sil, Debangshi, Suri Sadar Hospital,Birbhum.

Vill.Bolsonda Colony, 2. Superintendent, Suri Sadar Hospital,

P.S. Sainthia, Birbhum Birbhum.

3. Oriental Insurance Co. Suri Br.Suri,

Birbhum.



PRESENT : - Shri S.K. Roy ***----------------- President,

:- Shri M.K. Pal ----------------- Member.

:- Smt. Bula Koley……………Member.



Date: - 19/03/2009
J U D G E M E N T



In a nutshell the complaint story is that the complainant undergone surgical operation for sferilistion by the op.no.1 on 21.04.04, who assured that the complainant shall be not come pregnant after that operation. But the complainant became pregnant thereafter which, was detected on 02.05.05 at Suri Sadar Hospital, this happened due to unsuccessful tubectomy for the negligence of the O.P no. 1. There was deficiency in his service. Hence, this case.

The O.P no. 1 contested the case by filing a written version wherein he has taken a few legal objections, denied the material allegations made in the petition of complaint and has stated that the mother with husband of the complainant gave consent for ligation operation along with cesarean section which was noted on the Bed Head Ticket of the complainant and accordingly the operation was done by him on the requests of the relatives of the complainant. The written consent was taken on the Bed Head Ticket for scarcity of the consent Form in the Hospital at that time. The complainant and her relatives were informed that in case of failure of the operation the complainant may become conceive and in that case the doctor and/ or hospital will not be blamed. In such circumstances she should inform about her pregnancy within two weeks and get aborted. There is a chance of failure rate of 0.3% and this rate may increase when ligation operation is done along with cesarean section. The complainant without following the instruction came to the hospital when she was carrying for 24 weeks, when there was no scope for abortion. Hence the case merits dismissal.

The added O.P no.3 also contested the case by filing a separate written version. It has also taken a few legal objections, denied the material allegation of the complaint and has stated that the

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ligation operation is a prentive measure against pregnancy. There is chance of failure of that operation. This O.P is not liable to pay any compensation. The case merits dismissal.

To prove the complaint case the complainant herself and her husband Shyamal Sil sworn and file two affidavits on evidence and filed a few documents, exts. 1 to 1/6 as per list. On the other hand the O.P no. 1 Dr. Debasish Debangshi alone sworn and file counter affidavit on evidence and a few documents (attested copies) exts. A to K as per list.

Points for consideration are:-

1. Is the case maintainable in its present from and in law?
2. Was there any deficiency in service of the OPP. Party no.1?
3. Is the complainant entitled to the reliefs prayed for?



DECISIONS

Point no. 1:- This point has been agitated by the Ld. Lawyer for the O.P no.1.His submission is that the complainant availed the service of this O.P free of cost under the national programme for sterilization and no consideration was paid by the complainant. More over the Suri Sadar Hospital is a government hospital where the complainant undergone the ligation operation without paying any charge. Accordingly the operation can not be termed as service as defined in sec. 2(1)(o) of C.P. Act, 1986, and the case is not at all maintainable. Challenging this argument the Ld. Lawyer for the complainant placing reliance upon the decision of the Hon’ble Apex Court reported in (1995) III C.P.R. 412 (S.C.) has submitted that the hospitals private or govt. where there are provisions of paying and non paying system the services rendered by the doctors and other hospital authorities comes under the ambit of the definition service u/s 2(1) (o) of the C.P.Act, 1986. and as such the case is quite maintainable. I have carefully gone through the decision relief upon by the Ld. Lawyer for the complainant, when the Hon’ble Apex Court has held that the service rendered at a govt. or non govt. hospital/ health centre/ dispensary/ nursing home where charge are required to be paid by person who are in a position to pay and person who can not afford to pay are rendered service free of charge would fall within the ambit of the expression service as defined in section 2(i)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who will not in a position to pay for such service. Free service would also be service and the recipient a consumer under the Act. Here, in this case though I do not see any material that the ligation operation was done under any free medical camp of any national programme, but with due regard to the Hon’ble Apex Court I like to say that this case is maintainable in its present form and in law. This point is answered accordingly.

Point no. 2:- This point has been agitated by the complainant. The Ld. Lawyer in his argument

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has submitted that the O.P no.1 Dr. D. Debangshi did not perform his duties as a surgeon in conducting the tubeclomy operation. Though he gave assurance that after the said operation the complainant will never conceive. But in fact the complainant became pregnant and has given birth of her unwanted third female chiLd. If the doctor done the surgical operation carefully with due diligency the complainant must not suffer in this way. Even no consent in writing was taken from the complainant or her husband in any prescribed Form.

Against the above argument of the Ld. Lawyer for the complainant it has been submitted by the Ld. Lawyer for the O.P no.1that there was no negligence and deficiency in service rendered by this doctor. It has been categorically mentioned in the written version and in the affidavit on evidence that for want of prescribed consent form in the hospital the consent of the husband and mother of the complainant was taken in the bed head ticket by the on duty labour room sister. The Ld. Lawyer has drawn my attention to ext. B an attested copy of ‘Record of in patient’ for the complainant. It is seen that the husband and mother of the complainant gave their consent. Even both the complaint and her husband in their cross examination have admitted this fact of giving consent .His further submission is that after discharge from the hospital after the ligation operation neither the complainant nor her husband even came to Dr. Debangshi with any complain or any trouble or inconvenience for such operation. In absence of any reliable evidence how it can be said that the doctor was negligent. The medical literature says that there is a failure rate of ligation of 0.3% and no surgeion can assure that the ligation operation is 100% safe for not becoming pregnant after wards, rather if the couple desires they can get baby by a subsequent operation. The Ld. Lawyer in respect of failure rate of such operation has referred a medical book “Text Book of Obstetrics” 4th edition, by Dr. D.C.Dutta. At page 591 the heading is “Tubectomy”on the next page i.e. page 592 it is mentioned “Techniques: (a) Pomery’s …………..

Advantages:- It is easy, safe and very effective inspite of the simplicity of the technique. The failure rate is 0.1-0.3%

(b) Madlener’s teachnique:- It is easiest method . The loop of the tube is crushed with an artery forceps. The crushed are is tied with black silk. The loop is not excised. The failure rate is very high to the extent of 3% and hence it is abandoned in preference to the Pomeroy’s technique. On the basis of that text book he has referred A Journal “Doctors in the Dock” by JVN JAISWAL. At page 296 there is an observation of the Hon’ble Gujrat High Court which is as follows:-

“Jusstice D.S.Shah, while dismissing of the last two appeals, has placed reliance upon the Book, namely, ‘Operative Obstetrics’ (VIII edition), page 6865 written by Munro Karr wherein in the chapter on ‘Sterilization’ it has been observed that ‘ No method of sterilization is entirely safe and complete and there are possibilities of failure of operation due to many natural reason also.

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Therefore, the pregnancy or fertilization after operation is always not sufficient to jump to the conclusion of negligence on the part of the doctor. We agree, in this view of the clear legal position, we have indeed no alternative left with us but to dismiss this appeal holding that no complaint to recover damages for tortuous liability because of failure of family planning operation is maintainable even before the Consumer Disputes Redressal Forum under the Act.”

Giving due consideration to the submissions of the Ld. Lawyer for both the parties and taking into account that there is no allegation and proof of any post operation trouble or complication against the O.P doctor save and except the post operation conception, so in view of the medical literature as I have mentioned above that there exists chance of failure of the operation, it could be held that there was no negligence on the part of the doctor.. A professional may be held liable of negligence on one of the two findings, either he was not possessed of the requisites skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he did possess. (2009 CJ.J.61 (C.P.) (N.C.D.R.C.). In this case there is neither such averment or evidence about such skill and not using the same.

In this case O.P doctor has contended that the complainant did not inform about her post operative conception within two or three weeks and she come after 24 weeks when there was no scope for abortion. If she contacted the doctor within reasonable time abortion could be done. There is no challenge of the same.

More over the Hon’ble National Commission in the case reported in 2007 CTJ23(CP)(NCDRC) has held that “If a patient does not adhere to the advice of the doctor, does not appear for timely cheek up and voluntarily abandons his service, he cannot turn around and say that the doctor was deficient.” In this case in hand the complainant did not come to the doctor within two weeks of her post operative conception and got cheek up by another doctor at Sainthia as reveals from the materials on record, the above decision is helpful to the O.P doctor Debangshi.

Again the Hon’ble Apex Commission in another decision reported in 2008 CTJ 737(C.P)(NCDRC) has held that “a medical practitioner would be liable only where his conduct fee below that of the standards of a reasonably competent practitioner in his field”. But herein this case there is neither any such allegation of below standard nor any evidence to prove the same. So it can not be said that the O.P doctor Debasis Debangshi was deficient in rendering the service to the complainant.

Consideration the above discussion I am of the opinion that there is no negligence or deficiency on the part of the O.P no. 2 for the sterilization operation. This point is answered accordingly.

Point no.3 :- In view of any above findings the complainant is not entitled to any relief in this

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case. But she could approach the appropriate authority in term of the G.O. no.H.F./O/FW/14/4A-

02/2006 dt.10.01,.06/ Govt. of West Bengal, Deptt. of Health and Family Welfare, SWASTHYA BHABAN, wing ‘B’ 3rd floor, GN-29,Sector –V, Salt Lake City Kolkata-700091. This point is answered accordingly.

In the result the case fails.

Fees paid are correct.

Hence,

It is,

Ordered

that the case is dismissed on contest. Parties will bear their own

cost.

Copies of this judgment be supplied to the parties free of cost.



(Shri S.K. Roy --- President)

(Dictated and corrected by me.)



(Shri S.K. Roy --- President)

We agree,



(Shri M.K. Pal ----------- Member)



(Smt. Bula Kolay --------- Member)